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2014 Supreme(Bom) 432
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
S.C. DHARMADHIKARI & RAVINDRA V. GHUGE, JJ.
Jaishri & Others
Versus
State of Maharashtra, Through its Secretary, Urban Development Department & Others
Writ Petition No. 8800 of 2011
Decided on: 20-02-2014
For the Petitioners:S.B. Talekar, Advocate.
For the Respondents:R1 to R4, S.G. Karlekar, AGP, R2, N.P. Patil Jamalpurkar, R3, S.T. Shelke, R5, S.S. Bora, R6, A.R. Singh, Advocates.
Headnote:Maharashtra Provincial Municipal Corporation Act, 1949 - Section 3(4) - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965, Section 6(1) Proviso - Constitution of India, Article 13(2), 14 and 243-Q - Conversion of Municipal Council into Municipal Corporation. - Requirement as to previous notification or consultation with existing Municipal Council, not attracted to conversion of Municipal Council into Municipal Corporation on account of population of area exceeding 3 lacs. - As far as the present case is concerned, what is relevant is the amendment to the sub-section (4) of Section 3 of the Maharashtra Municipal Corporations Act, by which, a proviso has been inserted and which states that, where the population of any urban area in respect of which there is an existing council constituted under the provisions of the Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, as per the latest census figures has exceeded 3 Lakhs, the State Government may, for the purposes of constituting a Corporation under this Act for such urban area, may issue a notification within the meaning of Section 3 and in doing so, it can dispense with the condition of previous publication. That dispensation is in larger public interest and so as to avoid repetition of the exercise required to be undertaken by previously publishing a notification. The previous publication of the notification would delay the process. That is how, the State Government is conferred with a discretion to dispense with the previous publication of the notification under proviso to sub-section (4) of Section 3. There is no question of dispensation of the constitutional requirement or factors as enumerated in Article 243-Q. it is only previous publication which is dispensed with and nothing more.
Whereas a perusal of Section 6 of Municipal Council Act, 1965 would indicate that subject to the provisions of sub-section (2) of Section 3, the State Government, may by notification in the official Gazette, alter the limits of a municipal area so as to include or to exclude such local area, as may be specified in the notification therefrom. This power is of alteration of limits of the municipal area and, therefore, it is obvious that municipal council or councils and other local authorities have to be consulted. The people are going to be affected and that is why they are required to be given an opportunity to object to the proposal and the Government has to reach a satisfaction or opinion that such objections are insufficient or invalid.
However, the challenge herein is not any alteration of the limits of the Parbhani Municipal Council or amalgamation of two or more municipal areas, so as to form one municipal area. Similarly, the challenge does not envisage splitting up of any municipal area into 2 or more municipal areas. The challenge is also not in regard to the declaration contemplated by clause (d) of sub-section (1) of Section 6. There need not be any compliance with the mandate of Section 3 and proviso below sub-section (1) of Section 6 of the Municipal Councils Act, when the population of the Municipal area as per the latest census figures has exceeded 3 lakhs in a Corporation under the provisions of the then Bombay Municipal Corporations Act, 1949. When under a distinct Act, namely, the Bombay Provincial Municipal Corporations Act, a Municipal Corporation is to be constituted for the same municipal area, and with the same boundaries, that is because the population in respect of the Municipal area, for which there is an existing municipal council, as per the latest census figures, has exceeded 3 Lakhs.
The Municipal area remains the same. Its boundaries are the same. All that has happened is, the population of that area has exceeded 3 lakhs. Once it has exceeded 3 lakhs and the Corporation for such area is being constituted under a distinct and different Act, then, Court does not see how the local area comprising of a municipal area has ceased to be as such. All that has happened is, governance of that area is by a separate legal entity. Initially, it was governed and administered by a Municipal Council covered by the Maharashtra Municipal Councils Act, now, it will be covered by the Maharashtra Municipal Corporations Act. The unit of self-governance is now covered by a distinct but wider statute. Therefore, the dispensation as contemplated by proviso inserted by Maharashtra Act No. 42 of 2011, does not suffer from the vice of unconstitutionality.
There is no consultation with the Municipal Council if it is to be made a Municipal Corporation because the effect of such conversion is not necessarily adverse.
The effect would be for the better. The administration of such increased area, styled as a larger urban area, requires a more enhanced set up. For that set up to be introduced, brought in and established, it is necessary that the enactment is incorporating or having a provision so as to enable the authority to convert the existing administrative and managerial set up, into a capable and efficient one. The Municipal Corporation functions at the higher level. When the Municipal Corporation comes into being or is established, there is a different regime, and which is in a position to give quality services to the residents. It has more administrative and financial backing than the smaller entity, namely, Municipal Council.
Once such is the scheme of the legislation, then we do not see as to why there is any requirement of consultation with the municipal council or municipal Councillors or the residents as well. They are not going to be in any way adversely affected nor are their rights in any way jeopardized. Once they have a guarantee of a strong and comprehensive unit of Government, then, how any constitutional guarantee is in any way infringed or violated.
S.C. Dharmadhikari, J.
1. Rule. The Advocates for respondents waive service. By consent Rule is made returnable forthwith.
2. By this petition under Article 226 of the Constitution of India, the petitioners are challenging the constitutional validity of Section 3 of the then Bombay Provincial Municipal Corporations Act, 1949, now, the Maharashtra Municipal Corporations Act, 1949.
3. It is prayed that subsection (4) to Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 and proviso to sub-clause (d) of subsection (1) to Section 6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, (hereinafter referred to as,” the Municipal Councils Act” for short), are ultravires Articles 13(2), 14, 243Q and 368 of the Constitution of India.
4. A further prayer is to quash and set aside the notification dated 1st November, 2011, issued by the Deputy Secretary to the Government of Maharashtra, Urban Development Department, Mantralaya, Mumbai, declaring the Municipal Council, Parbhani as a larger urban area and constituting the Corporation for the same by dispensing with the condition regarding previous publication.
5. The further prayers are also incorporated, but for our purposes, it is not necessary to refer to them in details.
6. As far as this writ petition is concerned, we would have thought that by now, and by passage of time, the controversy therein is rendered purely academic. However, Mr. S.B. Talekar, learned counsel appearing for the petitioners submits that this conclusion cannot be drawn merely because of pendency of the writ petition and enforcement of the Amendment Act or the notification in question. He submits that serious and fundamental issues have been raised, of constitutional and general public importance and hence, this Court be pleased to adjudicate upon the same.
7. Acceding to this request of Shri Talekar, that we proceed to refer to the facts and the challenge laid before us.
8. The petitioners are the residents and members of the Municipal Council, Parbhani, which is since dissolved by the Government of Maharashtra. At the outset, they contend that, they are not opposed to the constitution or establishment of the Municipal Corporation for the city of Parbhani. However, their case is that, elections of this Municipal Council were held on 19th November, 2006. The election of the President of the Municipal Council was held on 21st December, 2009. The term of office of the members of the Municipal Council would end on 20th December, 2011.
9. The petitioners would have thus remained in office, but for the notification issued on 1st November, 2011, by the Government of Maharashtra, appointing the Collector as Administrator/Authorized officer under Section 452A of the then Bombay Provincial Municipal Corporations Act, 1949. It is the case of the petitioners that they were busy in some meeting and particularly, on the subject of the Water Conservation and Water supply schemes. However, they were never aware, nor were made aware of any decision of the State to convert the Municipal Council into Municipal Corporation. It was revealed lateron, that the Government is considering a proposal of converting the Municipal Councils of Chandrapur, Latur and Parbhani into Municipal Corporations.
10. The Government, however, notified the elections of the Municipal Councils in the State, including Chandrapur and Latur. The petitioners pointed out that there was a Code of Conduct in force and what came to their notice is, that one Member of the Parliament and from Parbhani, threatened to go on a hunger strike, so as to pressurize the Government to convert the Municipal Council into a larger municipal area i.e. Municipal Corporation.
11. It is submitted that, in terms of the earlier decision, the State did not accept this proposal and hence, the matter was not referred to the Honourable Governor of Maharashtra. Lateron, the constitutional mandate has not been adhered to, in converting the
